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    Jssmit
    UST COMPLIANCE - REC??
    Topic posted January 30, 2010 by JssmitMember, last edited January 19, 2012
    1539 Views, 35 Comments
    Title:
    UST COMPLIANCE - REC??
    Content:

    have a site in NY that has UST's and AST's.  Site registration not valid and tanks not being monitored as per current regulations.  Would this be a REC as there is no evidence of environmental impacts but is obviously not in compliance. 

    Comment

    • ZekeF
      posted January 30, 2010 by ZekeFContributor

      How long have the tanks been there?

      Most underground storage tank systems eventually leak.  I've heard that 4 out of 5 gas stations in Michigan have had one or more release. 

      So unless those tanks are really recent, I would call them a REC. 

      Theres some good past discussion of similar topics:

      http://commonground.edrnet.com/posts/db09b7113c

      http://commonground.edrnet.com/posts/c0d144d6b4

      http://commonground.edrnet.com/posts/9700b6faf5

      http://commonground.edrnet.com/posts/376ab61b58

    • Matt Fox
      posted January 30, 2010 by Matt FoxElite Contributor

      The compliance issue in and of itself isn't an REC.  But I would look at the whole package....lack of compliance....age....condition....etc, and make decision if the USTs are a REC.

      Matt

    • plusone876
      posted February 1, 2010 by plusone876Contributor

      If you have no data on the tanks then it should be an REC.

    • Tom Speight
      posted February 1, 2010 by Tom SpeightElite Contributor

      Lack of data = REC.

      I myself would at this point be more worried about regulatory enforcement actions than due diligence issues at this point.

    • Show/Hide Replies
      kevin
      posted February 1, 2010 by kevinSuper Contributor

      By AAI and ASTM definitions, all UST and AST are REC.  If the tanks are not in compliance they do not meet assurance requirments.  To reistablish assurance, owner/operators are required to conduct a Site Check (CFR 40). 

      Also, don't use the word "impact" when you mean affect.  And, don't use the word contaminated until you detect concentrations of a regulated material in surface water, soil or groundwater at concentrations above a regulatory threshold.  Further, unless you have x-ray vision, it is impossible to visually inspect a tank site and claim there is no evidence of a rlease.      

      • rwheeler
        posted February 1, 2010 by rwheelerMember

        Kevin, I dont necessarily agree that an AST is automatically an REC, but a UST, yes.. with an AST you can visually inspect it for a "material threat of a release."  

        Just out of curiosity, where in the AAI or ASTM does it state that all USTs/ASTs are RECs???

    • Show/Hide Replies
      Matt Fox
      posted February 1, 2010 by Matt FoxElite Contributor

      Curious....exactly where in ASTM or AAI does it say all USTs and ASTs are RECs?  I have issues with pretty much everything you said, but lets start there. 

      By the way, ASTM states specifically that all ASTs are NOT RECs.

      • Patrick Sutton
        posted February 2, 2010 by Patrick SuttonSuper Contributor

        "I have issues with pretty much everything you said"

        Ha, thank you, stole the words right out of my head. 

    • MaxEng
      posted February 1, 2010 by MaxEngElite Contributor

      Tanks that should be registered but aren't are a business environmental risk to essentially any purchaser.  RECs aside, that seems to be at the crux of this question.  Somebody will have to pay to get this regulatory issue resolved, sooner or later.

    • Matt Fox
      posted February 1, 2010 by Matt FoxElite Contributor

      So one second after a brand new double-walled UST with all the bells and whistles gets filled, it presents a "material threat of a release" and becomes a REC?  I disagree.

      If that's what ASTM intended, then the standard for a REC would simply be the presence of hazardous materials...period....and they would have left out the part about "material threat of a release".

    • jessedphillips
      posted February 2, 2010 by jessedphillipsElite Contributor

      I know people who consider any UST a REC, too.  I think that the "logic" is that there is a "material threat" any time there is the presence of a hazardous material, especially since you can't be in the ground to say that the soil is clean but that is ludicrous. 

      If the UST system is in compliance, is double walled, has a statistical inventory reconciliation (SIR) program that is working, has cahtodic protection where needed, etc. and has tests that indicate that the system is tight, then how is that a material threat of a release?  Or an indication of a past release? 

      I can't really add anything to what Matt has been saying, except that in all the time I've been on here, I agree with his opinions most of the time. 

    • plusone876
      posted February 2, 2010 by plusone876Contributor

      I would say that a UST should be given the "guilty until proven innocent" treatment.  Basically a UST should be treated as a REC until it is proven otherwise (ie tight, in compliance, double walled, etc.).  I would think most people would agree with this...

    • Show/Hide Replies
      jessedphillips
      posted February 2, 2010 by jessedphillipsElite Contributor

      I like that philosophy.  Regarding the original question, with only the information provided so far, I'd call that situation a REC.  If you determine that it's not a REC, you could say that compliance issues should be resolved, like Tom, and Max have intimated. 

      I've had instances where the tanks had good tightness tests, etc. but paperwork needed to be filed with the state agency to be "in compliance."  I usually say "this isn't a REC, but it should be addressed."

    • Show/Hide Replies
      Matt Fox
      posted February 2, 2010 by Matt FoxElite Contributor

      I'm fine with the "guilty until proven innocent" approach when it comes to USTs.  And I think most pragmatic EPs would agree with that.

      I'd like to be the fly on the wall when rwheeler or McCarthy tries to explain to their client that the 500-gallon double-walled diesel UST installed two weeks ago at a nursing home for their backup generator represents a material threat of a release and therefore is a REC.  Would you then have the nerve to recommend a Phase 2?  Say goodbye to that client.

      • McCarthy
        posted February 3, 2010 by McCarthyElite Contributor

        I would gladly consider a UST installed this morning as a REC because I've seen installers botch jobs.  When was the last time you reviewed a STI-P3 printout and made the thermal calculations Matt?  Are you a licensed installer?  Yep, I would gladly recommend a Phase II.  And Matt, when your friendly banker sues you when you thought you were acting in their interest, your crystal ball defense will be laughed out of court.  As long as you continue to defend the position that EPs should be banker's lapdogs in order to get work, I think we'll continue to disagree. 

    • Show/Hide Replies
      EdG
      posted February 2, 2010 by EdGElite Contributor

      I am curious Mr. McCarthy - are you saying all compliant USTs are RECs? (2010 UST?).  If so, then that would likely have lending implications (i.e. SBA). 

      What would your recommendation be upon stating it is a REC - soil/gw testing?

      Thanks - Ed

      • McCarthy
        posted February 3, 2010 by McCarthyElite Contributor

        Yes, I would recommend a Phase II even for a 2010 UST.  I understand the lending implications under Appendix 5 of the SBA SOP, but with brokers out there ready to sell C-store buyers and lenders insurance in lieu of Phase II's, I guess they needn't worry because insurance appears to replace decades of experience.  Why the continued battle to avoid turning over rocks when its the buyers and lenders whose interests are being protected?  I don't get this model of lending a million dollars and freaking out about spending $5,000 to determine that you're not putting all the money at risk. 

        • EdG
          posted February 3, 2010 by EdGElite Contributor

          Mr. McCarthy -  I was not attacking you and your approach.  I was asking a sincere question (very politely).  I happen to respectfully disagree with your approach as it makes zero sense. 

          However, you answered my question - thank you. 

          But what firm will actually charge only $5,000 to do soil testing?  Thank you.

          Ed

          • McCarthy
            posted February 3, 2010 by McCarthyElite Contributor

            Sorry Ed, I didn't mean to get too defensive, but my position makes a lot of sense.  I'm not sure how best to describe it without sounding even more offensive (apologies again), but if you've been standing over leaking tank removals for two decades instead of reading about them in portfolios, I think you would have a better handle on the frequency with which tank system components (e.g. piping, tanks, unions, overfill buckets, etc.) leak.

            As to $5K for for soil testing...a cursory assessment isn't unheard of at all.  You're typically trying to do a pass/fail test on the initial Phase II, just a couple quick borings and limited analytical to assess whether a leak has occurred with a quick letter report documenting results.  You're not trying to delineate the full degree and extent of the problem or estimate clean-up costs, those are supplemental and may or may not be part of the transaction.  If your first cut doesn't identify any issues, then the transaction typically proceeds.  We're not trying to find wee spills to create an issue, we're looking for significant releases which represent a significant financial cost.  If contamination is encountered, then the transaction gets revisited.

            • Joshua
              posted February 3, 2010 by JoshuaSuper Contributor

              It seems to me to be no different to say dry cleaner=REC than UST=REC. Both are based on experience. I personally would not be inclined to call every UST an REC, but I have to admit that McCarthy has the high ground when it comes to long experience (longer than me, anyway). So, for the sake of honesty and humility, I will take to heart what he says.

              • McCarthy
                posted February 3, 2010 by McCarthyElite Contributor

                I can't reasonably respond about the frequency of spills/releases at dry cleaners as I have done many fewer.  However, cost-wise, dry cleaner PERC releases that are even orders of magnitude less than petroleum releases can cost orders of magnitude more to assess and clean-up due to the nature of the contaminant.  I know Larry had some statistics about dry cleaner releases on a different posting and the numbers were surprisingly high.

              • Joshua
                posted February 3, 2010 by JoshuaSuper Contributor

                I should clarify. I must have been reading too fast. I see the ASTs and USTs are on the site for this discussion. Then I would call it an REC every time. I was assuming adjacent USTs were in view as well.

                With that said, if the UST was new, etc., etc., I would clarify the situation in the conclusions section.

            • EdG
              posted February 3, 2010 by EdGElite Contributor

              No worries Mr. McCarthy.  I sincerely (like everyone else) respective your opinion and experience.  I am not sure I am convinced - but heck I am always willing to listen.  So thanks (sincerely) for your input.

              As an aside - there is no question tanks, even new ones, are a problem.  I am just not convinced that it is automatically a REC.  But I will absolutely confess - you have much more hands-on experience than I.

              Thanks,

              Ed

    • Cory
      posted February 3, 2010 by CoryContributor

      A conservative approach to any UST system whether it was installed in 1995 or 2010 always makes sense.  Most consultants I've worked with take a conservative approach because as I understand it once a UST is filled with product no one can guarantee that system has not leaked from the get go, even with inventory and leak detection.  I understand that no two UST systems are the same.  One can leak like a sieve and be only 2 years old and another that is 10 years old has not leaked to the extent that it has impacted the site.  These are just my thoughts and as a user of Phase I's I appreciate the consultants conservative approach to UST systems.  I don't mind spending even 10,000 dollars for soil and groundwater sampling on a UST facility no matter how old it is.  As an aside I am not usually as concerned with new UST facilities but I would want confirmation that the current system has not leaked. 

    • Show/Hide Replies
      MaxEng
      posted February 3, 2010 by MaxEngElite Contributor

      No one can guarantee that a UST system installed in 2009 that has compliant leak-detection with no indication of release has not, in fact, released.  McCarthy, are you saying that spending $5k on subsurface investigation will provide such a guarantee?  (I'm sure your PLI provider wouldn't allow you to answer "yes.")

      No level of subsurface evaluation will provide a "guarantee" that no impacts have occurred.  The question then becomes what level of due diligence is appropriate to provide reasonable assurance that you aren't buying a huge problem.  In my opinion, relatively new tanks that are equipped with proper leak detection, with no indications of leaks, do not constitute a REC.  However, there's no rule that says in the absence of RECs you are stupid to conduct further investigation; I see the presence of any USTs as constituting a business environmental risk.  Even if they haven't leaked in the past 30 years, they might leak tomorrow.

      Personally, I wouldn't often recommend to a client buying a gas station with compliant leak detection that he conduct a subsurface investigation.  But I'm not going to criticize anyone who would.

      • McCarthy
        posted February 3, 2010 by McCarthyElite Contributor

        Most oil companies quantify the risk related to acquiring additional C-stores by conducting a "baseline assessment", including soil borings and sampling at the time of acquisition.  I've done dozens for the largest C-store retailers.  Most don't perform or even care about Phase I's, because they want to quantify their "business risk" and they know that the compliance monitoring systems often are incorrectly managed (at best).  If you reread my posting, it doesn't say anything about guarantees, in fact it reiterates your message of only looking for large / potentially costly problems.  So if these same oil companies always do Phase II's in acquisitions, why shouldn't your clients?